Nickols v. Commissioners of Middlesex County

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation341 Mass. 13,166 N.E.2d 911
Decision Date03 May 1960

Frederick G. Fisher, Jr., Boston, for plaintiffs and petitioners.

William F. Dierkes, Boston, for defendants and respondents.


CUTTER, Justice.

Statute 1922, c. 499, established the Walden Pond State Reservation. Section 1 authorized the commissioners of the county of Middlesex to take by gift land near the pond, 'title to * * * be * * * in the commonwealth * * * subject to such restrictions and conditions as may be imposed under deeds of gift.' Section 3 2 gave to the commissioners 'full * * * authority to * * * maintain the * * * reservation in behalf of the commonwealth.' Certain tax support was authorized. By deeds recorded on June 9, 1922, donors in the Emerson and Heywood families gave to the Commonwealth land (the Emerson and Heywood grants) constituting all the shores of the pond except a strip abutting the right of way of the Boston and Maine Railroad. These deeds each provided that the 'parcels are * * * subject to the restriction and condition that no part of the premises shall be used for games, athletic contests, racing, baseball, football, motion pictures, dancing, camping, hunting, trapping, shooting, making fires in the open, shows or other amusements such as are often maintained at or near Revere Beach and other similr resorts, it being the sole and exclusive purpose of this conveyance to aid the Commonwealth in preserving the Walden of Emerson and Thoreau, its shores and nearby woodlands for the public who wish to enjoy the [p]ond, the woods and nature, including bathing, boating, fishing and picnicking.' 3 In 1927, the railroad, by a deed without any restrictions, conveyed the shore near its location to the Commonwealth. Thereafter there were various developments of the area, described more fully in the margin. 4

Public bathing in the pond has greatly increased in recent years. Until 1957 bathing was limited to the beach at the easterly end, 'a water frontage of about 1,600 feet.' Under St.1957, c. 380, § 1 (see footnote 4, supra), the commissioners carried out substantial extensions of the existing beach and, to do this, cut over one hundred large trees and nearby undergrowth. These trees, 'for the most part, things of great beauty, and * * * mature growth,' might 'have endured as beautiful trees for many years.' The commissioners also (a) planned to build a paved concrete ramp or ramps from an existing parking area to the beach; (b) widened the beach, from a width of eight to ten feet to one of fifty feet, 'by cutting down the embankment' on the pond shore from a 'grade of about four-to-one, to a grade of about two-to-one, and using the excavated material to fill in the pond [under water] for a distance of eighty-five or ninety feet out from the then existing water's edge'; (c) built additional parking spaces involving substantial cutting of trees and provided access to the pond by a road for fishermen; and (d) planned to build a concrete bath house about one hundred feet long 'at the bottom of the slope close to the new beach,' which already has involved the cutting of about twenty-five substantial trees.

Upon the commencement of this work on June 15, 1957, '[m]any persons in * * * Concord and Lincoln were disturbed.' A committee was formed 'to protest * * * what they regarded as a violation of the restrictions * * * in the deeds of gift and the destruction of much of the [reservation's] beauty.'

On September 13, 1957, a group of taxpayers residing in the county filed a bill in equity, purporting to act under G.L. C. 214, § 3(11), (A)5 to enjoin the commissioners from 'altering or destroying the shores and nearby woodlands of * * * [the pond] by the erection of bath houses and the construction of paved roadways to the shore' and (b) to require them 'to preserve the shores and nearby woodlands * * * and to observe the * * * purposes of the gifts and conveyances.' The commissioners' demurrer was overruled. The case was heard by a master together with the mandamus proceeding (described below) in which he was appointed auditor. His thorough report (in most respects the same as his report a auditor) was confirmed. By final decree the bill was dismissed. The taxpayers have appealed.

On October 8, 1957, four citizens and residents of Concord filed a petition for a writ of mandamus, alleging certain facts already stated. They sought a writ commanding the commissioners to observe the terms of the deeds and to refrain from conduct in violation of those deeds. The commissioners' demurrer was overruled. After a report from the auditor, to which there were no objections, the trial judge reported the case, without decision, upon the pleadings and the auditor's report. The facts stated are based upon the auditor's report.

1. General Laws c. 214, § 3(11), see footnote 5, supra, permits a bill to enforce the 'purposes of any gift * * * to and accepted by any county, city, town or other subdivision of the commonwealth' (emphasis supplied). The Emerson and Heywood grants were to the Commonwealth and not to a State subdivision. Although St.1922, c. 499, § 1, authorized the commissioner to accept the gift, title was to 'remain in the commonwealth.' In their acceptance (see Bianco v. Lay, 313 Mass. 444, 447-448, 48 N.E.2d 36; City Bank Farmers Trust Co. v. Carpenter, 319 Mass. 78, 79-80, 64 N.E.2d 636) the commissioners acted as State officers under the 1922 statute. The taxpayers cannot proceed against the State or its officers under § 3(11). The bill sets out no basis for relief under the general equity jurisdiction (G.L. c. 214, § 1, as amended by St.1935, c. 407, § 2), for this is a suit in which the Attorney General is not the plaintiff or an intervener. Neither has he authorized the taxpayers as relators to prosecute a suit in his name to enforce a public trust. See G.L. c. 12, §§ 7, 8; Ames v. Attorney General, 332 Mass. 246, 250-251, 124 N.E.2d 511. Cf. Briggs v. Merchants Nat. Bank, 323 Mass. 261, 281, 81 N.E.2d 827.

2. The petitioners have standing as citizens by mandamus to 'enforce a public duty of interest to citizens generally.' Pilgrim Real Estate, Inc. v. Superintendent of Police of Boston, 330, Mass. 250, 251, 112 N.E.2d 796, 797; Town of Concord v. Attorney General, 336 Mass. 17, 26-28, 142 N.E.2d 360. See Sears v. Treasurer and Receiver General, 327 Mass. 310, 314-315, 98 N.E.2d 621; Atherton v. Selectmen of Bourne, 337 Mass. 250, 257, 149 N.E.2d 232; Dodge v. Inspector of Buildings of Newburyport, Mass., 164 N.E.2d 309. The question for decision is whether the commissioners are under a public duty, because of the deeds, their acceptance, and St.1922, c. 499, § 1, and other statutes relating to the reservation, to act otherwise than in the manner in which they have acted and propose to act.

3. The commissioners contend that the statement of purpose in the deeds is not a restriction, condition, trust, obligation, or burden with respect to the granted property. They further contend that the purpose was not to preserve the pond and nearby woodlands in their natural state.

Property conveyed to a governmental body, a corporation or trustees for particular public purposes may be subject to an enforceable general public obligation or trust to use the property for those purposes. See Howe v. City of Lowell, 171 Mass. 575, 577, 584, 51 N.E. 536; Codman v. Crocker, 203 Mass. 146, 150, 89 N.E. 177, 178, 25 L.R.A.,N.S., 980 ('where property is dedicated * * * to a public use for a particular purpose, it cannot * * * without the exercise of * * * eminent domain, be * * * [put] to a use of a different character, in disregard of the trust * * * and * * * the rights of the donors'); City Bank Farmers Trust Co. v. Carpenter, 319 Mass. 78, 80, 64 N.E.2d 636. See also Amory v. Trustees of Amherst College, 229 Mass. 374, 383-385, 118 N.E. 933; Temple v. Russell, 251 Mass. 231, 235-237, 146 N.E. 679, 49 A.L.R. 1; Wellesley College v. Attorney General, 313 Mass. 722, 724, 49 N.E.2d 220, and the analogy of the rule by which contracts are interpreted to carry out the principal purpose of the parties, King Features Syndicate, Inc. v. Cape Cod Broadcasting Co., Inc., 317 Mass. 652, 654, 59 N.E.2d 481; Spaulding v. Morse, 322 Mass. 149, 152-153, 76 N.E.2d 137; Lowell v. City of Boston, 322 Mass. 709, 715, 79 N.E.2d 713, (but cf. 729-731, 739-740); Corbin, Contracts, §§ 545, 547; Restatement 2d: Trusts, § 11, comments c, d, §§ 25, 95, 374, 378; Scott, Trusts (2d ed.) §§ 11, 25, 95, 374, 374.10, 378. If a trust or obligation was intended, it has been accepted by St.1922, c. 499, and, accordingly, the commissioners, as the public officers administering that trust, may be required by mandamus to perform their public duty under it.

Other cases have held that, in particular circumstances, no trust, obligation, restriction, or condition was created, but that the grantor's intention (or the result of the words he used) was merely to state a motive or precatory direction. See Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge, 7 Allen 125, 129-131; Drury v. Inhabitants of Natick, 10 Allen 169, 183; Barker v. Barrows, 138 Mass. 578, 580; Loomis v. City of Boston, 331 Mass. 129, 132, 117 N.E.2d 539, 540 (in the particular circumstances, land, not shown to have been a gift, conveyed to the city 'for the purposes of a public park' was held not subject to any enforceable trust). See also Dickson v. United States, 125 Mass. 311, 313; MacDonald v. Board of Street Com'rs of City of Boston, 268 Mass. 288, 295-296, 167 N.E. 417 (no words indicative of a trust found); Town of Wakefield v. Attorney General, 334 Mass. 632, 636, 138 N.E.2d 197, 199 (gift stated...

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